2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-21-2015

La Mar Gunn v. Credit Suisse AG

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Recommended Citation

"La Mar Gunn v. Credit Suisse AG" (2015). 2015 Decisions. Paper 407.

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PS1-101 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-4738

___________

LA MAR GUNN,

 Appellant

v.

CREDIT SUISSE GROUP AG;

NIKOLE SHELTON

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil Action No. 1-13-cv-00163)

District Judge: Honorable Richard G. Andrews

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 15, 2015

Before: RENDELL, GREENAWAY, JR. and SCIRICA, Circuit Judges

(Opinion filed: April 21, 2015)

___________

OPINION*

___________

PER CURIAM

La Mar Gunn appeals from the District Court’s order dismissing his complaint. 

For the reasons that follow, we will affirm the District Court’s judgment.

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

In January 2013, Gunn filed a pro se qui tam action under the False Claims Act 

(“FCA”), 31 U.S.C. § 3730 et seq., on behalf of the United States.1 He was granted leave 

to proceed with the action in forma pauperis. Gunn alleged violations against appellees 

for civil fraud under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 

§ 1964. In particular, Gunn alleged that appellees Nikole Shelton and Credit Suisse 

Group AG committed fraud and engaged in unlawful residential mortgage practices by 

intentionally altering securitization documents filed with the Internal Revenue Service 

and the Securities and Exchange Commission. Gunn further asserted that appellees have 

“tricked” courts throughout this country into accepting these counterfeit documents.

In accordance with § 3730(b)(2), the Clerk’s Office opened the case under seal. 

After the Government advised the court that it declined to intervene, the District Court 

proceeded to screen and review the complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). 

Initially, the court noted Gunn’s pro se status and acknowledged that his pleadings would 

be liberally construed and his complaint held to less stringent standards than one drafted 

by an attorney. See D. Ct. Mem. Op. at 3. Even with such liberal construction, however, 

the District Court concluded that the complaint was subject to summary dismissal given 

the simple fact that Gunn, who is not an attorney, was not qualified to represent the 

United States. The District Court further noted that Gunn’s failure to comply with 

 

1

 The FCA makes it unlawful to knowingly submit a fraudulent claim to the 

Government. See, e.g., United States ex rel. Paranich v. Sorgnard, 396 F.3d 326, 331-32 

(3d Cir. 2005). A qui tam action permits a private party, a relator, to file suit on behalf of 

the United States against anyone submitting a false claim to the Government, and rewards 

a successful plaintiff with part of the recovery. See United States ex rel. Zizic v. 

Q2Administrators, 728 F.3d 228, 231 n.1 (3d Cir. 2013).
3

several FCA service and filing requirements justified dismissal of his complaint, as did 

the fact that the complaint failed to set out a cognizable FCA claim. See id. at 5-6.

Gunn’s attempt to raise a RICO claim fared no better as the District Court 

concluded that nothing in the FCA allows a private citizen to file such a claim on behalf 

of the United States. Moreover, Gunn could not represent the Government with respect 

to any such claim. The court therefore entered an order dismissing the complaint in its 

entirety pursuant to § 1915(e)(2)(B). The court further noted that the only way Gunn 

could attempt to cure the defects would be to obtain counsel and file an amended 

complaint. Gunn was thus afforded an opportunity to obtain counsel to enter an 

appearance and file an amended complaint. Gunn was warned that his failure to do so 

would result in the Clerk being directed to close his case. After considering Gunn’s 

reconsideration motion wherein he requested leave to file an amended pro se complaint, 

the District Court entered an order denying the motion and directing the Clerk to close 

the case. This timely appeal followed.

We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review over 

the District Court’s dismissal of Gunn’s complaint under § 1915(e). See Allah v. 

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). We agree that Gunn’s pro se complaint 

was subject to dismissal. While it does not appear that we have had occasion to address 

the issue, every circuit that has is in agreement that a pro se litigant may not pursue a qui 

tam action on behalf of the Government. See United States ex rel. Mergent Servs. v. 

Flaherty, 540 F.3d 89, 93 (2d Cir. 2008); Timson v. Sampson, 518 F.3d 870, 873-74 
4

(11th Cir. 2008); Stoner v. Santa Clara Cnty. Office of Educ., 502 F.3d 1116, 1126-27 

(9th Cir. 2007); United States ex rel. Lu v. Ou, 368 F.3d 773, 775-76 (7th Cir. 2004) 

(citing also United States v. Onan, 190 F.2d 1, 6-7 (8th Cir. 1951)), rev’d on other 

grounds, 556 U.S. 928 (2008); Jones v. Jindal, 409 F. App’x 356 (D.C. Cir. 2011) 

(unpublished); United States ex rel. Brooks v. Lockheed Martin Corp., 237 F. App’x 802, 

802 (4th Cir. 2007) (unpublished).

There can be little doubt that the United States remains the real party in interest in 

this action. See, e.g., United States ex rel. Eisenstein v. City of New York, 556 U.S. 928, 

934-35 (2009); Mergent Servs., 540 F.3d at 93. As set forth in 28 U.S.C. § 1654, “[i]n all 

courts of the United States the parties may plead and conduct their own cases personally 

or by counsel ....” The federal courts “have routinely adhered to the general rule 

prohibiting pro se plaintiffs from pursuing claims on behalf of others in a representative 

capacity.” Simon v. Hartford Life, Inc., 546 F.3d 661, 664-65 (9th Cir. 2008) (collecting 

cases); see also Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 882 (3d Cir. 1991) 

(holding that parent and guardian could not litigate pro se on behalf of his children). 

Gunn does not allege that he has a personal interest or injury to vindicate on account of 

appellees’ alleged actions. As such, we do not hesitate to conclude that the District Court 

did not err in concluding that Gunn may not maintain this qui tam action in his pro se 

capacity as a relator on behalf of the United States.

Despite Gunn’s repeated contentions that he is best suited to pursue this qui tam 

action given his special “securitization” knowledge, he argues on appeal that the District 
5

Court should have appointed counsel for him in order to allow his action to proceed. 

However, appellee Credit Suisse Group AG is correct in its assertion that Gunn never 

requested the appointment of counsel, and instead insisted that he is more qualified than 

most attorneys to pursue this action on behalf of the Government. Surely Gunn cannot 

mean to imply that the District Court is obligated to sua sponte consider the appointment 

of counsel in every qui tam action filed by a litigant in a pro se capacity, and we would 

refuse to impose such an obligation on the District Court in any event.

Gunn likewise cannot be heard to argue that the District Court committed 

reversible error in failing to construe his pro se filings liberally. The District Court 

specifically noted Gunn’s pro se status and its obligation to construe his pleadings 

liberally. See D. Ct. Mem. Op. at 3 (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). 

Moreover, as appellee Credit Suisse Group AG notes, the District Court’s dispositive 

holding was based on the fact that Gunn may not represent the interest of the United 

States in a pro se capacity – not on any construction of his pleading or on the underlying 

merits of the action. It is for this same reason that we conclude the District Court did not 

abuse its discretion in failing to afford Gunn a further opportunity to amend the complaint 

after having previously granted him leave to obtain counsel for the purpose of filing an 

amended complaint, and warned him of possible dismissal. See Grayson v. Mayview 

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

Given the foregoing, we will affirm the District Court’s judgment and have no 

need to consider the appropriateness of the District Court’s alternative justifications for 
6

dismissal of Gunn’s complaint. Gunn’s numerous motions for “Mandatory Judicial 

Notice” pursuant to Fed. R. Evid. 201 are denied as such motions are not appropriate on 

appeal. See Fed. R. App. P. 10.2

 

2

 Appellee Credit Suisse Group AG asserts that Gunn has included unfounded and ad 

hominem attacks against the District Court and counsel in his appellate brief, and requests 

that the Court admonish Gunn for such statements. The Court agrees that Gunn’s status 

as a pro se litigant does not excuse him from exhibiting an acceptable level of civility. 

Gunn would be well advised to draft future filings accordingly.